Customs, Excise and Gold Tribunal - Delhi
Cawnpore Sugar Works Ltd. vs Collector Of Central Excise on 1 August, 1990
Equivalent citations: 1991(31)ECC301, 1991(51)ELT95(TRI-DEL)
ORDER V.T. Raghavachari, Member (J)
1. A sum of Rs. 6,17,890.92P had been allowed as rebate on the quantity of excess production of sugar during the months May and June, 1978 by the appellants M/s. Cawnpore Sugar Works Ltd. in terms of Notification No. 108/78 dated 28-4-1978. This was under order dated 28-10-1978 of the Assistant Collector.
2. Subsequently, the Assistant Collector took up proceedings calling upon the appellants to re-pay, out of the above amount, a sum of Rs. 89,101.58. This was under notice dated 18-5-1979. The appellants resisted the demand. Over-ruling their objections the Assistant Collector confirmed the demand under his order dated 26-10-1979. On appeal the Collector (Appeals), New Delhi, under his order dated 18-3-1983 set aside the order of the Assistant Collector and ordered de novo adjudication for issue of a speaking order. This appeal is against the said order.
3. We have heard Shri N. Singh, Consultant for the appellants and Shri Balbir Singh for the Department.
4. The contention of the appellants is that the demand under notice dated 18-5-1979 was barred by time and therefore the Collector (Appeals), who accepted that the grant of rebate under order dated 28-10-78 was not provisional, should have on this ground of time bar itself set aside the order of the Assistant Collector and should not have ordered readjudication by way of remand. The Collector (Appeals) had ordered readjudication on the ground that in his order confirming the demand the Assistant Col-lector had not indicated the provision in the Central Excise Rules under which he was confirming the demand.
5. On the issue whether the grant of rebate under order dated 28-10-1978 was provisional, the order of the Collector (Appeals) reads as follows :
"The Assistant Collector in his order dated 16-12-1979 has stated that the rebate amounting to Rs. 6,17,890.92P was granted to the appellants' PLA provisionally. However, in the order dated 28-10-1978 sanctioning the rebate to the appellants there was no indication that the sanction was provisional."
Thus Shri Singh is correct when he contends that the Collector (Appeals) had rejected the finding of the Assistant Collector that the grant of rebate has been earlier made provisionally. If the Collector (Appeals) was correct in the said conclusion then there was no need to order a remand for readjudication since on that finding itself he should have set aside the demand finally since the show cause notice had been issued beyond the period of limitation prescribed for issuing the demand.
6. We have, therefore, to see whether the Collector (Appeals) was correct in his finding that grant under the order dated 28-10-1978 was not provisional. On a perusal of the said order it is seen that the grant is not mentioned specifically to be provisional. On the other hand, the words appear to read that the grant was final. The only portion which may suggest that the quantum was liable to subsequent reduction reads as follows : "It may please be ensured that the entire quantity produced during the month May and June, 1978 is cleared from the factory and if there is any loss due to any reason the quantity of rebate may be reduced accordingly." Thus this clause only suggests that if some quantity for which also rebate had been granted is lost for any reasons before clearance the amount of rebate in respect of that quantity will stand reduced. In the present case the demand was not for the reason of any such loss. The demand was for the reason that duty payable on the free sale sugar was less than the amount of rebate granted on that quantum of free sale sugar. This Tribunal has in the case of the Jagatjit Sugar Mills Co. -1985 (21) ELT 289 held that the rebate and credit as in the present instance cannot amount to any advance deposit or advance credit but would only be refund and that the provisions of Section 11A would apply in any demand for repayment of that refund. In paragraph 3, the Tribunal observed as follows :
"Secondly, the strict legal position is that there is no provision for any advance deposit or credit in the notification. It is an exemption notification issued under Rule 8(1) to allow a duty reduction in respect of sugar produced in excess over the base period. In the normal course, the reduced duty, as against the normal higher duty, was payable when the eligible sugar was cleared from the factory. If the department happened to allow a greater amount of reduction in duty than what it thinks was warranted, the excess payment has, in law, to be treated as nothing else but erroneous refund of duty. The authority and procedure for recovering back such excess payment by the Department are laid down in Section 11A of the Act. If the Department chose to issue a demand for such recovery under Section 11 A, it cannot in the same breath, say that it is not bound by the time limit laid down in that section. If, on the contrary, the department's stand is that Section 11A did not apply and the limitation under the common law applied, as held by the Collector, then the Collector himself had no jurisdiction to decide the matter; the only course open to him was to file a civil suit for recovery of the excess payment."
7. The concept of provisional refund in such circumstances has again been rejected in the case of Collector of Central Excise v. Malwa Sugar Mills Co. Ltd. - (1986 Vol. 23 ELT 144). The Tribunal observed as follows:
"The department's plea against the time bar is that the whole arrangement of paying the sugar rebate in anticipation of actual clearance of the excess produced sugar was an extra-legal one, not backed by any statutory rules, and therefore, the payment made to the respondents cught to be treated as provisional. We find no merit in this plea. Apart from the fact that there is no provision in the Central Excises and Salt Act, 1944 or in the Central Excise Rules, 1944 to grant any provisional refund, in the present case at least the rebate paid towards the quantity exported could not be treated as provisional because the full facts of the export were within the department's knowledge when it determined and paid the said rebate. The Collector has come to us with a statutory appeal. This Tribunal has to dispose of the appeal in accordance with the provisions of the Statute only. If the department wishes to have relief on the ground that what it has been doing was extra-legal, the remedy, if any, should have to be sought elsewhere."
8. Another case that came up before the Tribunal that could be looked into is that of Triveni Engineering Works Ltd. (1986 Vol. 26 ELT 583). In that case also, the Department, after having granted incentive rebate on excess production of sugar, subsequently found that the appellants had paid less duty than was granted as rebate and issued notice for recovery of what, according to the Department, had been paid in excess. It was contended for the Department before the Tribunal that the rebate can never be higher than the duty and if such higher rebate had been granted it will be a subsidy by the Govt. and, therefore, the recovery thereof will not be governed by the provisions of limitation in the Central Excises and Salt Act and rules thereunder. The Tribunal rejected the said contention and held that so long as the proceedings for recovery by the departmental officers was by way of proceedings under the Act the provisions for limitation under the Act would be applicable and that if recovery was to be made without reference to the said period of limitation as laid down under the Act the proceedings will have to be through a civil court in which event recourse can be had to the limitation under the Limitation Act. The judgment of the Supreme Court in the case of Miles India Ltd. [1987 (30) ELT 641 (SC)] was relied on in that connection.
9. As earlier mentioned, the Collector (Appeals) has held that the order dated 28-10-1978 was not for grant of rebate provisionally. For the reasons stated earlier I hold that the said finding was correct. If so it follows that the demand for repayment of part of that refund was, in this case, made beyond the period of limitation prescribed therefor. I accordingly hold that the Collector (Appeals) should have, following his earler finding, set aside the order of the Assistant Collector finally and ought not have ordered a readjudication, I accordingly allow this appeal and, while upholding the order of the Collector (Appeals) in setting aside the order of the Assistant Collector, set aside the order of the Collector (Appeals) so far as it directs the remand for readjudication.
P.C. Jain, Member (T)
10. I have gone through the order dated 14-10-1987 passed by learned brother Sh. Raghavachari. With respect, I regret, I am unable to agree. My separate order is as follows :-
11. A sum of Rs. 6,17,890.92P had been allowed as rebate on the quantity of excess production of sugar during the months May and June, 1978 by the appellants M/s. Kanpur Sugar Works Ltd. in terms of Notification No. 108/78 dated 28-4-1978. This was under order dated 28-10-1978 of the Asstt. Collector.
12. Subsequently the Asstt. Collector took up proceedings calling upon the appellants to re-pay out of the above amount, a sum of Rs. 89,101.58. This was under notice dated 18-5-1979. The appellants resisted the demand. Over-ruling their objections the Asstt. Collector confirmed the demand under his order dated 26-10-1979. On appeal the Collector (Appeals), New Delhi, under his order dated 18-3-1983 set aside the order and ordered de novo adjudication for issue of a speaking order.
13. For a proper appreciation of the Collector (Appeals) order dated 18-3-1983 relevant extracts are reproduced below in full :-
"I have gone through the records of the case and the submissions made by the appellants in their written appeal and also during the personal hearing. It is seen that the order sanctioning the rebate to the appellants was issued on 28-10-1978 the notice for the recovery of the amount of Rs. 89,034.56 was issued to the appellant on 18-5-1979. The Asstt. Collector in his order dated 16-12-1979 have stated that the rebate amounting to Rs. 6,17,890.92 was credited to the appellants PLA provisionally. However in the order dated 28-10-1978 sanctioning the rebate to the appellants there was no indication that the sanction was provisional. Further the Asstt. Collector's order confirming the demand and ordering the recovery of Rs. 89,101.58 from the appellants does not indicate the provision of the Central Excise Rules under which the demand had been confirmed.
In view of the above findings, I hold that the Asstt. Collector's order is not a speaking order. I, therefore, set aside the order with the directions that he should decide the case de novo and issue a speaking order indicating therein inter alia the provisions of Central Excise Rules that may be invoked."
14. Sh. N. Singh, Consultant for the appellant and Sh. Balbir Singh for the department have been heard.
15. The contention of the appellant is that the demand in notice dated 18-5-1979 was barred by time and therefore, the Collector (Appeals) who accepted that the grant of rebate under order dated 28-10-1978 was not provisional, should have on this ground of time bar itself set aside the order of the Asstt. Collector and should not have ordered re-adjudication by way of remand. The Collector (Appeals) has ordered re-adjudication on the ground that in his order confirming the demand, the Asstt. Collector had not indicated the provisions in the Central Excise Rules under which he had confirmed the demand.
16. I am unable to accept the aforesaid pleas of the appellant. From a reading of the Collector (Appeals) order as extracted above, it is apparent that the Collector (Appeals) has cast doubts about the correct state of facts available in the case. In the order dated 28-10-1978, the Collector (Appeals) observes, the Asst. Collector had not indicated that the sanction was provisional, whereas in the order dated 26-12-1979, the Asstt. Collector had indicated that the earlier order dated 28-10-1978 sanctioning the amount of Rs. 6 lakhs as rebate was credited to the appellants' PLA provisionally. In view of the confusion of facts and in the absence of any clear indication regarding the Rules under which the demand was finally confirmed, the Collector (Appeals) has ordered for de novo adjudication. There is nothing wrong on the part of the appellate authority to remand the case to the lower authority for de novo adjudication if the state of facts to be decided is not clear and on this short point, the impugned order does not appear to suffer from any infirmity.
17. But the matter does not stop here. The learned Consultant for the appellant has stated that the order dated 28-10-1978 cannot by any means be treated as a provisional rebate/refund. The order dated 28-10-1978 after sanctioning an amount of Rs. 6,17,890.92 sets out the following three conditions :-
"No rebate will be admissible on the quantity of sugar exported under Bond without payment of duty out of rebatable quantity of sugar shown above.
It may please be ensured that entire quantity produced during. the month May '78 to June '78 is cleared from the factory and if there is any loss due to any reason the quantity of rebate may be reduced accordingly.
All dues outstanding against the factory should be adjusted from the rebated amount before it is credited in the P.L.A. subject to-final authentication by the proper officer of the Central Excise."
18. The relevant condition referred to by the respondent in the so-called cross-objection is condition No. 2 i.e. the quantity produced during the month May '78 to June '78 should be cleared from the factory and if there is any loss due to any reason, the quantity of the rebate may be reduced. Accordingly, this condition has been termed by the respondent herein giving the sanction of the rebate as an advance credit to the appellants which would get finalised only on clearance of the sugar produced in the months May '78 to June '78. On the other hand, it has been urged by the appellants that this does not mean that the refund/rebate was provisional. In support, the appellants have cited two authorities based on the decisions of the Tribunal namely (i) Jagatjit Sugar Mills Co. - 1985 (21) ELT 289 and (ii) Malwa Sugar Mills Co. Ltd. - 1986 (23) ELT 144.
19. I have carefully considered the aforesaid plea of the appellant. The authorities of the Tribunal's decision mentioned supra or relied upon in learned brother's order do not help the appellant. In the decision reported at 1985 (21) ELT 289, the Tribunal has observed that a strict legal position is that there is no provision for any advance deposit or credit in the notification. In the normal course, the reduced duty, as against the normal higher duty was payable when the eligible sugar was cleared from the factory. It is thus apparent that the Tribunal has recognised that the benefit of exemption under notification under Rule 8(1) for excess production of sugar is available only at the time of clearance of such excess production and there is no provision for any advance credit. Yet it remains a fact that the advance credits are given to facilitate the working of the sugar industry and a well laid down procedure has been adopted in consultation with the ISMA (Indian Sugar Mills Association) - a body representing the Sugar Industry - which is working for over two decades. Although I have not been able to lay my hands on the initial order of the Board, a gist of it is available in para 4 of a trade notice based on Board's letter at page 327-A of CENCUS Vol. Ill 1975 which is reproduced below :-
"Regarding the operation of the rebate scheme is concerned, the benefit of the exemption is being given not as usual in the case of such notifications at the time of clearance of the goods, but an advance credit to the extent of the concession admissible under the notification is given as soon as excess production is determinable, in anticipation of the clearance of such sugar. It is an essential part of the scheme of grant of advance credit that all sugar in respect of which such advance credit is allowed should be cleared on payment of duty at the full rates. This ensures that the benefit that accrues to the Sugar Mills is limited to the extent provided under the notification".
20. This procedure can be deemed to be a supplemental instruction issued by the Board under Rule 233 of the Central Excise Rules, 1944. Having taken advantage of a part of these Supplemental instruction, sugar factories cannot turn around and say that the other part of the said instruction or the whole of the instruction is illegal. Nature of the credit i.e. that it is advance credit, cannot be disputed. Finality of the credit is subject to clearance of the excess production of sugar. Therefore, any time limit for the purpose of claiming any refund or recovery should be reckoned from the date of clearance of the excess production of sugar or the date of credit of the rebate sanctioned whichever is later. Since the relevant fact in the instant case as to when the excess production of sugar was cleared is not available, the Collector (Appeals) was quite justified in remanding the matter. It is also worth noting here that in the two cases relied upon by the learned Consultant mentioned supra, the Tribunal has found or assumed that excess production rebate was credited after the clearance of excess production of sugar. Therefore, it was rightly held that computation of time limit of six months under Rule 11 (or Section 11B) would reckon from the date of credit in the PLA. In the instant case however, the date of clearance of excess production of sugar is not known.
21. We, however, observe that the decision of the Collector (Appeals) in remanding the matter would not be justified for some other reasons inasmuch as he has touched upon the plea of time bar alone and has not taken into account the various other pleas submitted by the appellant as is indicated from the order dated 26-12-1979 of the original authority. For a proper disposal of the appeal before him, the Collector (Appeals) also ought to have looked into the other pleas submitted by the appellants and if he had not agreed with the other pleas on merits, then only the remand on time bar would have been justified. In the instant case, it would, therefore, be fit and proper that the Collector (Appeals) looks into all the pleas of the appellant and if there are any disputed facts which are not available on record before him, he may call for a remand report from the lower authority and then decide the matter. On the question of time bar, he may take into account the observations referred to in para 11 mentioned above.
G. Sankaran, President
22. I have heard Shri N. Singh, Consultant, for the appellants and Shri L.C. Chakraborty, DR, for the respondent-Collector.
23. The facts of the case have been set out in the order of the referring Bench and do not need to be repeated.
24. On perusal of the Assistant Collector's order dated 28-10-1978 sanctioning the "rebate", I do not see any provisionality about it save in two respects : (a) no rebate would be admissible on the quantity of sugar exported under bond without payment of duty out of the quantity in respect of which the rebate was sanctioned and (b) the entire quantity produced during May and June, 1978 should be cleared from the factory and if there was any loss due to any reason, the rebate would be reduced accordingly. Therefore, when the Assistant Collector observed in his Order-in-Original dated 28-12-1979 that the rebate was allowed to be credited on a provisional basis, he was only partially correct. There was nothing in the order dated 28-10-1978 to even remotely suggest that it was contingent upon the actual amount of duty paid on free sale sugar being not less than the amount of credit allowed. Of course, it stands to reason that rebate or refund or by whatever name the relief was called ought not to exceed the duty actually paid. Otherwise, the excess amount would not be duty and the rebate would not be of "duty" paid. This point has been well brought out in the cross objection filed by the Collector in the following words :-
"The Central Excise law is for the levy of Central Excise duty and not a law for grant of an amount by way of incentive for production in excess of duty payable out of Consolidated Funds of India, which is what would be the case, if the rebate granted exceeded the duty paid."
Realising the situation, the Collector has gone on to say that, in the instant case, since no amount had been paid to the Govt., the advance credit cannot be treated as amount erroneously refunded nor is it duty not levied or not paid or short levied because the correct amount of duty that was leviable on the sugar had been paid at the time of its clearance. From this premise, the Collector submits that the time limit of 6 months under Central Excise Rule 10, which came into play only when demand was made on account of duty short levied, or not levied or refunded erroneously, does not apply to the present case. It is the general law of limitation that governs such cases.
25. In this context, it is relevant to note what the Supreme Court has said in its judgment in Collector of Central Excise, Chandigarh v. Doaba Co-operative Sugar Mills -1988 (37) ELT 478 (SC) in which case also the Mills had been sanctioned a certain amount by way of incentive for excess production of sugar in terms of the very same Notification No. 108/78. The amount was credited to the P.L.A. of the Mills on 18-5-1979. On 5-11-1981, the Superintendent issued a notice to the Mills asking them to show cause why a portion of the said amount granted in excess should not be recovered from them. Para 6 of the judgment is reproduced below:
"It appears that where the duty has been levied without the authority of law or without reference to any statutory authority or the specific provisions of the Act and the Rules framed thereunder have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the departmental authority, an assessee is bound within four corners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the Civil Court for recovery of the amount due to the department in case when such a remedy is open on the ground that the money received by the asses-see was not in the nature of refund. This was the view taken by the Tribunal in a previous decision in the case of Miles India Ltd. v. The Assistant Collector of Customs but it was assailed before the Court. The appeal was withdrawn. This Court observed that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor in the relevant provisions of the Customs Act, 1962. If really the payment of the duty was under a mistake of law, the party might seek recourse to such alternative remedy as it might be advised. See the observations of this Court in Miles India Ltd. v. Assistant Collector of Customs - 1987 (30) ELT 641 (S.C.)."
It may be noted that the reasoning adopted by the Collector in the order impugned before the Tribunal in the Doaba Co-operative Sugar Mills case (which went upto the Supreme Court) was the same as put forth in the appeal memo in the present case.
26. The learned D.R., for the respondent, submitted that the original sanction order must be treated as provisional in the circumstances of the case. In this context, he relied on the Bombay High Court's judgment in Someshwr Sahakari Sakhar Karkhana Ltd. and Ors. v. Union of India and Ors. - 1988 (34) ELT 522. In that case, the Court took note of the Trade Notice dated 26-7-1978 subject to which such advance rebates of duty were being sanctioned. It was expressly stated therein that the rebate claim filed in advance before actual clearance of excess sugar, when sanctioned, would be treated as provisional subject to its finalisation when the excess sugar so segregated was finally cleared and accounted properly. Further, the sugar factory was to execute an undertaking to refund excess amount, if any, paid on finalisation of the provisional sanction. This procedure was followed by the petitioner and they executed the required undertaking. It was thus clearly understood that what was initially done was a provisional sanction and not a final one. Having taken advantage of the Trade Notice and having given the stipulated undertaking, the petitioners, said the Court, were estopped from contending otherwise. In this view of the matter, the Court held that the authorities were justified in taking the view that what was ealier done was a provisional assessment and not final and, therefore, Rule 10 had no application to such a case.
27. It must be noted that the Bombay High Court was dealing with a Writ Petition in its extraordinary jurisdiction. The Supreme Court's judgment in the Doaba Co-operative Sugar Mills case, in its appellate jurisdiction over the Tribunal's order came later in point of time. The Tribunal is bound by the law declared by the Supreme Court.
28. The Bombay High Court's judgment was challenged by a special leave petition. Leave was declined in the following words :-
"We are of the opinion that this is not a fit case in which leave to appeal under Article 136 of the Constitution should be granted. The petitioner's contention is that the rebate granted is sought to be recovered without issue of a notice under Section 11-A. The High Court has pointed out that the original grant of rebate could be treated as on a provisional assessment. It is also common ground that the petitioner obtained the rebate originally in pursuance of the trade notice which made it clear that the rebate was being granted in advance purely on a provisional basis and the petitioner also gave an undertaking that he would refund the excess, if any, found later. There is no dispute that the petitioner has received excess rebate. In these circumstances we do not think that the petitioner is entitled to special leave from this Court. The special leave petition is dismissed."
This, it must be noted, was on the facts and in the circumstances of the case. In the present case, as we have seen, the original sanction of rebate was not provisional in so far as the present dispute is concerned. The record does not disclose that any undertaking was executed by the appellants. In fact, the cross-objection filed by the Collector refers to Trade Notice No. 1/79 dated 11-1-1979 issued by the Collector of Central Excise, Allahabad which was intimated to the factory by the Assistant Collector wherein it had been made clear "that (sic) provisional nature of credit was (sic) allowed to them". The trade notice was apparently issued after more than 2 months of the sanction of rebate. No reference has been made by the Collector to any undertaking. 29. There is one more decision that was referred to by the Consultant for the appellants. It is the Tribunal's order No. E/239/90-D dated 19-4-1990 in Excise Appeal No. 2088/87-D - Collector of Central Excise, Meerut v. Dhampur Sugar Mills Ltd. This order was passed on remand by the Supreme Court to re-determine the provisionality or otherwise of the original assessment. The Tribunal observed in para 9 of its order :
"We have also perused the copies of the RT-12 Returns (assessment documents) for the months of June, July and August 1978. In all the three returns, para 2 of the assessment memorandum to the effect that the assessment was made provisional has not been cancelled. However, this circumstance alone does not lead to the conclusion that the assessment was provisional. Provisional assessment has to be done, normally, under Rule 9-B of the Central Excise Rules, and the Asstt. Collector's order for provisional assessment is a must. Mechanical signatures on RT-12 returns, made without any application of mind, cannot make an otherwise final assessment a 'provisional' one. In this case, there is no such order but we cannot, in view of what follows, base our decision on this circumstance alone."
In para 10, it was further observed -
"We have perused the various documents to which Shri Gopal Prasad Ltd. Consultant referred during his arguments. These documents included the Trade Notices, the instructions of the Ministry of Finance, the Superintendent's letter and the respondents' letters and also the sanction order for the refund all of which indicated, explicitly in some cases and implicitly in other contexts, (with necessary implications) that both sides considered that the assessments were provisional. Besides, the ratio of the Bombay High Court judgment, wherein the same Notification and similar circumstances were under examination, applies fully to the facts of this appeal. That the Bombay High Court was examining a question of demand raised by Revenue, does not make any difference."
It is seen that the assessee had executed an undertaking and it was understood between the parties that the sanction of the rebate was provisional. Thus the facts are not similar to those in the present case. Of particular significance is the fact that the rebate was sanctioned only after the assessee executed an undertaking in the Dhampur Sugar Mills case. It was on the facts and in the circumstances of the case that the Tribunal in the aforesaid case observed:
"For these reasons, we come to the finding, after considering all the evidence including the correspondence placed before us, that in the peculiar circumstance of this matter where both sides from the beginning, proceeded on the basis that the assessment was provisional, the assessment order and the grant of rebate were provisional. We find so, in spite of our observations in para-9 supra, as the documentary evidence available in this case is too strong to be ignored and the Bombay High Court, examining a similar matter came to conclusions which The Supreme Court's judgment in the Doaba Co-operative Sugar Mills case (supra) does not seem to have been cited before the Bench.
30. In the light of the foregoing discussion, I am of the opinion that the Supreme Court's judgment in its appellate jurisdiction over the Tribunal in the case of Doaba Co-operative Sugar Mills is more apposite.
31. In this view of the matter, I answer the 3 questions posed by the two Learned Members who heard the appeal in the first instance :
1. It was refund of duty (yet to be paid) and, in that sense, advance credit but subject to deduction on quantities of sugar exported and the quantity, if any, lost' due to any reason. It was also subject to the entire quantity produced during May and June 1978 being cleared from the factory. However, it was not provisional with regard to the dispute involved in the present case.
2. On the facts and in the circumstances of the present case, the time limit for recovery of erroneous credit (refund of duty) on excess production of sugar is to be computed from the date of the credit in the PLA.
3. The entire demand is time-barred.
DECISION
32. In view of the majority opinion the impugned order as well as the Order passed by the Assistant Collector are set aside and the appeal is allowed as the entire demand raised was time-barred.